Imagine walking along the dry sand beach and coming to a sign that says, “Private Beach, No Loitering.” Probably many readers have shared this experience, but how many people have stopped and thought, “why is it a private beach?” In most states, if the stroller were to ignore the sign and sit down on the dry sand, she could be forcibly removed and charged with trespass. But what is the moral justification for this official use of force by the State? Why should the State protect the individual beachfront property owner’s desire to keep the dry sand beach empty on a day when numerous members of the public might want to enjoy it? The obvious response to these questions is that the beach belongs to the owner because the owner paid for it and the State protects private investments in property. That explanation, however, just moves the initial question back one transaction: that is, why was the beach private when the prior owner sold it to the present owner? We really need to go back to the beginning and ask what the moral justification was for granting private ownership of the sandy beach in the first place so that the buying and selling could begin. What was the moral justification for a property system that ended up excluding the vast majority of us from the vast majority of beaches? Many people have probably never considered that theories had to be developed to justify the private ownership of all land, including beaches. Since the times of the ancient Greeks, however, the need to justify private land ownership has been recognized and debated in Western culture. Indeed, the founding fathers of the United States extensively debated property theories, the rules that each theory could justify, and the type of society different property rules might produce. Property debates often focus on whether the government is infringing on the rights of the owner, and not the underlying justifications for ownership and whether the owner’s actions are in keeping with those justifications. Yet, as Michael Heller points out, uncritical acceptance of private property causes people to fail to grasp its past and possible future flexibility: “If people thought deeply about the property they used, perhaps they would see that even the core meanings are historically contingent and indeterminate. However, the everyday perspective on property masks its mysterious character.” But then again, even if a particular allocation of property rights is not questioned and debated in the courts, significant numbers of the public might refuse to accept or respect it. Moreover, Robert Ellickson and others have pointed out that social norms within a community can be more important than the formal law in establishing the actual practice of property. One certainly sees this along many beaches. Where people decide to walk, sit, fish, and swim seems to be determined more by past practice and following the examples of others than by the constitutional, statutory, or case law of the State. I have argued elsewhere that this practice is in part attributable to the difficulty of establishing workable boundaries on coastlines between public and private property. Still, I believe that many people walk where they wish because they question whether the beach should be privately owned, even if they never think about the issue in terms of formal property theory. This Article examines the private ownership of the dry sand beach in terms of the leading moral theories that justify the private ownership of land. These theories are: first-in-time, possession, labor theory, personality theory, and aggregate social utility. This Article concludes that none of these theories provides a clearly satisfactory justification for the private ownership of most beaches. The search for justifications for private beaches is important because, as Eric Freyfogle points out, “private property is a form of state-sanctioned power [and] it is legitimate and worthy of respect only when it is adequately justified.” This Article ends by suggesting what the absence of a strong moral justification for the private ownership of dry sand beaches might mean for future policy options. The lack of strong moral arguments for private dry sand beaches can be used to justify different public policies that could expand public access to the beaches.
Property Theory And Owning The Sandy Shore: No Firm Ground To Stand On,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol11/iss1/4